Colleges make lots of money off of sports. Why can’t student athletes do the same?

Mission Prep grad Patrick Laird prepares for last game as star Cal Bears running back

Mission Prep graduate Patrick Laird plays his last football game for Cal in the Cheez-It Bowl on Dec. 26. He went from a former walk-on to earning a scholarship to now staring as the Bears’ top running back.
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Mission Prep graduate Patrick Laird plays his last football game for Cal in the Cheez-It Bowl on Dec. 26. He went from a former walk-on to earning a scholarship to now staring as the Bears’ top running back.
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College athletes should be able to profit from endorsements and sponsorships without losing their eligibility to compete. The Fair Pay to Play Act, Senate Bill 206, would accomplish exactly this by ensuring that students participating in intercollegiate athletics may earn compensation as a result of the use of the student’s name, image or likeness.

Under SB 206, no student could lose a scholarship for doing so and no college could be punished for allowing its students to do this. The California State Assembly should follow the lead of the California State Senate and pass this bill, and Gov. Gavin Newsom should sign it into law.

State Sen. Nancy Skinner introduced SB 206 to deal with a serious problem: Many college athletes are living at or below the poverty level, while their colleges profit greatly from interscholastic sports. Coaches in some sports are paid millions of dollars a year while many athletes struggle to have enough money for food. Colleges and universities gain enormous financial benefits from their athletes, billions of dollars overall, but the athletes can receive none of this money directly.

One approach to solve this would be to allow the colleges to pay athletes beyond the scholarships and stipends they now receive. Although there is much to be said for this, it also would raise difficult issues: How would the amount and source of funds be determined? What would be the effect on competitiveness and fairness of college sports? What would be the effect on Title IX, which requires gender equity, including in interscholastic sports?

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A preferable approach is for colleges to not be involved at all in the compensation, but instead to allow athletes to obtain their own endorsements and sponsorships. This would allow college athletes to have the same rights as all other college students and all other persons in California. Under NCAA rules, all student athletes in California are required to give up their basic legal rights to their name, image and likeness in order to participate in collegiate sports.

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No other group of students has to give up these rights. Student actors and musicians, for example, are allowed to have endorsements and sponsorships.

This is not just about elite male athletes in football and basketball. Female athletes, in particular, have a great deal to gain from SB 206 because they have far fewer opportunities to play professional sports than male athletes. For many female athletes, college may be the only real time to achieve compensation from their talent. Moreover, if female athletes could market themselves, as they could under SB 206, it likely would raise the profile of women’s sports in general and provide even more opportunities for female athletes.

The NCAA has threatened dire consequences for California schools if SB 206 passes. In June, NCAA president Mark Emmert sent a letter to the California State Legislature threatening to ban California schools from postseason events if SB 206 becomes the law.

In reality, though, it is unlikely the NCAA would do this because California schools are an important part of NCAA sports. The law would not go into effect for three years, which should provide time to work out issues with the NCAA. In addition, punishing California schools like this would likely violate federal antitrust laws.

Erwin Chemerinsky

Colleges and universities – including University of California, Stanford, and USC – oppose SB 206. They contend that giving student athletes the right to seek endorsements and sponsorships will hurt colleges financially because student athlete deals may siphon off funds that schools might otherwise receive. But there is no evidence to support this.

In light of the huge amount of money surrounding major college sports, there is no reason to believe that allowing athletes to receive this compensation will have any effect on what colleges are able to collect in endorsements and sponsorships. It certainly will not have any material impact on their enormous athletic department revenues.

Of course, there may be effects on internal team dynamics when some athletes receive sponsorships and others don’t. But that is common in any workplace where some receive compensation that is not available to others. There is no law or logic to the notion that no one can receive certain benefits because not all will get them.

As I have read about the debate in SB 206, I am baffled by the argument against allowing college athletes to be compensated for the use of their name or likeness. It is a basic issue of civil rights. College athletes should have the same right to benefit from endorsements and sponsorships as all others in society.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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